Legal empowerment for local resource control

BOX 7. THE SAN OF BOTSWANA: COMBINING COURT LITIGATION
WITH ADVOCACY
In 2006, the High Court of Botswana decided a landmark case brought by a
group of San (also known as Basarwa or Bushmen) who were relocated by the
government from the Central Kalahari Game Reserve in 2002. Although the
San had lived as hunter-gatherers on that land from time immemorial and
enjoyed resource rights under their customary law, the land was legally owned
by the state, and no formal taking of property occurred. Rather, the
government decided to terminate the provision of vital services such as water,
food rations and healthcare in the reserve; to withdraw the “special game
licenses” that had exempted the San from the legal prohibition to hunt in the
reserve; and to prevent the San from entering the reserve without a permit. As
a result of these measures, the livelihoods of the San were under threat, and
many relocated outside the reserve. Compensation for loss of huts and other
assets was promised but not quantified nor paid. Although a mining site
existed within the reserve and out-of-court allegations were made that the
relocation was motivated by the need to make land available for diamond
mining, the site had already been abandoned as uneconomic, and there was
no evidence that it played any role in the relocation.
The court found that although the land was owned by the state, the San were
lawfully occupying it, and that the San were forcibly deprived of this possession
without their consent. Government measures withdrawing special game licenses
and restricting entry in the reserve were deemed unlawful and unconstitutional.
The strategy pursued by the San to challenge the relocation was manyfold. It
entailed establishing collective associations for negotiations with government
authorities, establishing alliances with international campaigning
organisations such as Survival International, and engaging with the media in
Botswana and abroad (several articles featured for instance in the UK-based
Guardian and on the BBC web site). Court litigation was therefore used as part
of a broader strategy, and only after the escalation triggered by the relocation.
Each of these elements had slightly different emphasis. The alleged role of
diamond mining was for instance emphasised in media campaigns, as it
provided a useful rallying cry to gather support for the cause; but was
deliberately kept out of the court case, possibly due to the lack of evidence to
back up that allegation. It may have been important for the court case in an
indirect way, however, as international support was needed to fund litigation
costs and keep the case going. The complementarity between these different
strategies was confirmed by the very outcome of the court case – which, in
practice, was to refer the parties back to the negotiating table, but with the
starting position that the San had a right to stay in the reserve and that
government measures to the contrary were illegal.
Source: Sesana, Setlhobogwa and Others v. Attorney General, Judgement.
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